[Vidhispeaks] Judicial appointments: Understanding systemic discrimination against women in legal sector

By Husain Aanis KhanThe appointment of three women judges to the Supreme Court of India (SCI) and the possibility of a woman becoming the first Chief Justice of India in 2027 were valid moments of celebration. However, these celebrations should not make us lose sight of the larger issue of systemic discrimination against women within the legal fraternity..Manifestations of systemic discrimination can be low women representation at every level of the judiciary and discriminatory individual behaviour against women in the legal sector. Fixing these two painful manifestations through a quota for women judges and by a strict prohibition against discriminatory individual behaviour is valuable. However, it may not necessarily solve the problem.Direct, Indirect and Systemic DiscriminationThe social group of women (the deprived group) faces relative disadvantage across social sectors in relation to their male counterparts (the privileged group). Likewise, women lawyers who are potential candidates for appointment to a judgeship stand at a relative disadvantage. While they may not be getting directly discriminated because the appointment procedure does not exclude them directly on the basis of the template of grounds provided by Article 15 - “...religion, race, caste, sex, place of birth or any of them”- one possible argument could be that they are getting indirectly discriminated. Indirect discrimination is committed through an action which looks neutral in terms of treatment it does to the deprived groups; the action has to be a neutral-looking decision, law, practice, design, etc, that causes an adverse impact on the deprived group. The appointment procedure is such an action.The Chief Justice of India recommends a name for the appointment in consultation with four senior most-puisne judges. The recommendation goes to the Union Law Minister, from whom it goes up to the President of India for final appointment. The High Court (HC) has a bit longer but a similar appointment procedure which the Chief Justice of the concerned HC initiates. But, the lower judiciary has a different appointment procedure. Judges are selected through a merit-based, state judicial exam. Remarkably, the number of women in the lower judiciary is relatively more promising (36%) than that at the SCI (12%) and HC (11%).A statistical trend across every level of judicial system shows that the procedure for appointment seemingly leads to a skewed sex ratio in favour of men, in varying degrees.However, the theory of indirect discrimination may present an incomplete argument in terms of what exactly is the status of women within the legal fraternity. Evaluating only one set of practices such as appointment procedures of judges is insufficient to identify a larger phenomenon of discrimination against women in indirect and direct, subtle forms which can be experienced and sensed primarily by women in everyday life.Discriminatory individual behaviour takes place in what constitutes a normal life in the legal sector, which is another manifestation of the systemic discrimination. For instance, a female Dalit lawyer discussed that she was told that her hairstyle was more attractive than her arguments. Advocate Indira Jaising wrote that the opposite counsel called her “that woman” but called another male lawyer “my learned friend”. Clients preferring to hire male lawyers over female, young girls being discouraged from studying law on the grounds that it may later become a problem for getting married, are other such manifestations. Understanding the two forms—low representation and discriminatory individual behaviour—are valuable, but they must lead us towards questioning the systemic discrimination that is taking place at a step higher at the sectoral level, because the two forms are only subsets of systemic discrimination and hence, insufficient for a comprehensive analysis. We need an in-depth study on why there are less women in different sub-sectors of the legal sector other than the judiciary. We need to ask why are there less women in law schools? They have less than 50% women: West Bengal National University of Juridical Sciences (39%), Faculty of Law, Jamia Millia Islamia (40%), and National Law School of India University (46%). And amongst the current women law students, why do only few of them want to build a career in litigation? Litigation is, in fact, the usual gateway to becoming a judge at HC and then at the SCI.For instance, at the Faculty of Law, Jamia Millia Islamia, only 28.57% of women wanted to build a career in litigation as opposed to 71.42% men. Similarly, at the National Law School of India University, 11.9% of women and 22.6% men opted for litigation. Making policy efforts to enlarge the pool of women law students aspiring to build a career in litigation, may eventually enlarge the pool of potential women judges..Facilitative and Distributive MeasuresA scheme of affirmative action is of course needed while we search for answers to these questions. Affirmative action can be facilitative in nature, where we encourage more women to study law, take up litigation as a career (which may include encouraging concerned authorities to make even lower courts more accessible to women lawyers), and strive to become a judge at an HC and then at the SCI. This is a slow, organic process but one that directly draws towards solving the systemic problem systemically. Other than enlarging the pool of potential women judges it will even change the public perception about law as a career for women.Alternatively, affirmative action can be distributive. An example is earmarking a 50% reservation for women judges (as Justice Ramana recommended). The justification standard for this solution will remain very high, though it will hold a symbolic value, unless it is clearly shown: (i) what number of women judges ought to be at the SCI, and (ii) in relation to what pool such number was determined.In fact, a reservation may not, as likely as it appears, solve the systemic discrimination that shrouds the entire legal sector. There can be 50% women judges at the SCI, and yet the number of women choosing to study law and after that choosing to build a career in litigation may not substantially increase. Of course, unless we want to argue that having more women at the top (that is, the SCI) is going to create a change even at the bottom (that is, families and law schools) where women are discouraged or at least not specifically encouraged to study law and become lawyers.Unlike distributive affirmative action, facilitative affirmative action will solve the issue of inadequate pool of potential women judges. This sounds like a less exciting solution than endorsing a 50% reservation. But it is more solid because low women representation is only a manifestation of a systemic issue, which has to be solved systemically.The systemic solution while solving the systemic issue will necessarily on its way, solve the issue of less women choosing to study law, discriminatory individual behaviour in courts and other forms of discrimination against women. Making appointments at the top court may only hold a symbolic value and would solve a manifestation of the problem without really solving the problem..Husain Aanis Khan is a Research Fellow at Vidhi Centre for Legal Policy.Vidhispeaks is a fortnightly column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.